#5 February 2019/Amended agenda/CM resignation conditions

So soon again we meet,

Yikes, lots happened today.... Check out the amended agenda for tomorrow nights meeting and for in depth look at this stuff go to the background and at the end of this the citations for the city charter and the CM's contract. Well I began this issue saying that I was wrong twice in the Wire yesterday. I said "The council can choose to accept it (the resignation) and fulfill the terms of the charter with three months severance +accrued vacation +sick time +healthcare." That is not in the charter. I misread it. Kelly Galligan pointed it out to me. However I was going to say upon further research it is not clear that the letter I saw from Robert Smith is a clear letter of resignation, as Ms. Galligan believes. I think it is a letter of possible resignation depending on the outlined conditions being met  or a letter of possible resignation that opens the door  for severance negotiation. However,some more...during the writing of this issue, the City released a revised agenda for tomorrow nights 5:30 meeting.  In the background is the CM letter written to the Council along with a proposed agreement stipulating the conditions of acceptance of his resignation. Lots more below. And Doug Dunn who made the motion to accept the Jacobs contract pointed out that I was wrong on that also.  I said "Early this year councilperson Giacomino found that the approved council motion for the contract was for one year of operation rather than the five that was intended during discussion."

Here is what Doug Dunn wrote to me: "I made the PROPOSED MOTION provided by staff which was "I move to approve the Agreement between Jacobs and the City of Bisbee for Operational Services at the City of Bisbee Wastewater Treatment Plant."   PLEASE NOTE THE PERIOD.  I then followed my motion with a statement to clearly indicate the FISCAL IMPACT (as also included in the cover sheet of the  agenda packet), which was "$731,000 to the Sewer Fund Budget for 12 months of operation."       Fred, please note the period at the end of my motion (verbatim as  per PROPOSED MOTION provided by staff in our Agenda Packet).  There was extensive debate that evening.  Everyone understood we were discussing a five year contract.""The assumption made in your news letter and repeated in the press that "the motion to sign the contract was mistakenly made for only one year" is not correct."

and

"This is a standard Jacobs contract as per other communities.  The contract spells out in detail performance standards and states that "either party my terminate contract for a material breach after giving written notice of breach and allowable time for the other party to correct the breach."   This contract is for a long term commitment of staff development and plant operation.  This is not something that should be vulnerable to the political whims of the community."

..........................Whew!  I really do appreciate anyone pointing out to me where I have been wrong or published erroneous information. I prefer to get things as true as possible. .......................... This is the amended Council Agenda for tomorrow night's meeting at 5:30 at the Senior Center . See the background on item 2 below or go here:http://www.bisbeeaz.gov/AgendaCenter/ViewFile/Agenda/_02122019-289

THE FOLLOWING ITEMS WILL BE DISCUSSED AND/OR CONSIDERED AT THIS MEETING: 1.        Discussion and Possible Approval of an updated Visitor Center/ Tourism and Marketing Manager job classification. Daniel Duchon, Personnel Director

2.        Discussion and Possible Acceptance of the Resignation and Severance Terms of Robert Smith as City Manager. Per ARS § 38-431.03(a)(1), the City Council may vote to go into executive session for discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body. David M. Smith, Mayor

3.         Discussion and Possible Approval for a Temporary City Manager Search. David M. Smith, Mayor From the background info...CM Robert Smith's letter and proposed agreement for his resignation. 2/8/19 Council-It is my understanding that should Council proceed with Ms. Johns' request to terminate me, the first possible date to present a notice to terminate to the Council would be Feb. 19th. Given the Charter's requirement for at least 40 days notice before termination could be effective, the earliest date of termination would be March 3P1• To date, no Council member has spoken with me, nor to my knowledge, gathered facts from staff about whatever has precipitated Ms. John's proposal to terminate my employment. I am confident that the work I have conducted with staff is of solid professional caliber, and will vigorously defend same in court if necessary. Failure to provide severance, or an attempt to cobble together termination for cause will result in litigation, which will be lengthy, far more costly than what I'm requesting, and will ultimately create additional legal fees for the City, with my expenses, fees, wages and damages compounding those expenses. Further, I don't think the additional drama and headlines would help anyone involved. I offer a quick and fair alternative, and Council the opportunity to move on and select another manager for the position without additional conflict, drama and collateral damage to staff. I truly believe that the recent and forthcoming unintended consequences of Council's decisions up to and including my separation are going to be burdens that are not easily overcome. Ripples are already spreading through the administration. A lengthy, detailed public hearing refuting termination and focusing on performance, and/or litigation over an attempted termination for cause doesn't have to be part of Bisbee's future. I respectfully request that Council accept my resignation, pay me a fair severance, and turn this corner, moving forward in a positive direction.

Pursuant to Mayor Smith's memo (2/6/19), and based on what I learned while participating in Council's executive session on 01/08/19 and public meeting on 02/05/19, I hereby tender my immediate resignation, conditioned on the following Agreement between me, Robert E. Smith, and the City of Bisbee, AZ (collectively referred to as the "Parties"):

AGREEMENT

1. Both Parties desire to amicably terminate their employment relationship and terminate the existing City Manager Employment Agreement through this Agreement, effective February 14,2019.

2. Both Parties further desire to resolve any and all outstanding matters between them through this Agreement.

3. Smith's last date of employment with the City of Bisbee shall be February 14, 2019. On that date Smith shall surrender all City property related to City business, including but not limited to equipment, phones, computers, records, documents, electronic files, passwords and keys, to the City Personnel Director, Dan Duchon. 4. Smith shall receive 3 months of severance pay as prescribed in City Charter as severance pay for termination without cause. This will include all compensation, benefits, coverages, 457 contributions and retirements that Smith has regularly received under contract, including funds to defray full COBRA premiums for Smith's existing selected health care plan, and dental and vision premium coverages for 3 months. City shall make COBRA premium payments directly to the COBRA administrator unless otherwise directed by Smith. a. Any pending, yet unpaid reimbursements to Smith, for expenses allowed under his employment agreement, City Code, Charter and Personnel Policy shall be paid within two (2) weeks of his termination date. (February 14, 2019) b. Smith shall be allowed to cash out all Paid Time Off (PTO) and Extended Illness Bank (EIB) hours he has accrued and not used to date. c. If Smith so chooses, he shall be allowed to directly receive funds for COBRA payments in a lump sum payment that also includes an amount to cover the tax liability such direct payment creates to Smith. d. Smith shall be allowed to choose how he receives distribution of the severance pay -either a recurring period for payments or a lump sum payment, or combination of both. e. Severance payments shall continue to completion under this Agreement to Smith or his spouse M. Morgan Smith, in the event of his disability or demise, and shall contain no offsets, mitigations or "clawbacks".

5. The City releases and forever discharges Smith from any and all claims of any kind, known and unknown, that are in any way related to events, acts, conduct or omission arising from Smith's working relationship with the City.

a. Provided, however, that the City is not releasing any claim that relates to: (1) Its right to enforce this Agreement; (2) any rights or claims that arise after the execution of this Agreement; or (3) any rights that it cannot lawfully release.

6. Smith Releases the City from any and all past and present causes of action, claims, rights and liabilities, known or unknown, statutory or common law, arising out of Smith's employment and/or separation from employment with the City.

a. By way of example only, and without limiting the immediately preceding paragraph, this release is applicable to any cause of action, right, claim or liability under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, Section 1981 of the 1866 Civil rights Act, the Equal Pay Act of 1963, the Americans with Disabilities Act, the Arizona Civil Rights Act, the Arizona Employment Protection Act and any other employment law or statute, or of wrongful discharge, breach of implied or express contract, breach of the covenant of good faith and fair dealing, intentional or negligent infliction of emotional distress, defamation and any other claim in contract or tort. b. Provided, however, that Smith is not releasing any claim that relates to (1) his right to enforce this Agreement; (2) any rights or claims that arise after the execution of this Agreement; or (3) any rights that he cannot lawfully release. 7. The City shall not oppose an application by Smith for unemployment insurance benefits after the three-month severance period ends if Smith remains unemployed. 8. Should the City desire assistance, Smith agrees to assist with a transition to a new City Manager by providing information regarding the status of pending matters. If Smith has relocated out of the City of Bisbee, and should such assistance require travel, or more than 4 hours of time, the City shall reimburse Smith for reasonable travel expenses (travel/mileage, food, lodging), and time beyond 4 hours at an hourly rate of $200/hour. Smith also agrees to be reasonably available to assist the City with conflicts, arbitration, appeals, or claims (pending or future, which pertain to his scope and period of employment with the City), where his knowledge or expertise may be of benefit to the City, at the same reimbursable and compensatory terms above. a. Smith agrees to keep confidential all proprietary information or knowledge pertaining to the City obtained by Smith during the course of employment with the City. 9. The Parties agree, represent, warrant and covenant that they will not act, speak, publish or in any manner disclose to any person, including without limitation, any personnel of the City, any supplier, vendor, agent, consultant, independent contractor, or any representative of any print, broadcast, or electronic media, any information about Smith, the City or the City Council, be it real or imagined, that will in any way be disparaging, derogatory, adverse, harmful, or otherwise detrimental to the City, the City Council or Smith. a. Smith agrees to instruct any prospective employers or agents thereof to direct all work history requests to the City Personnel Director. Subject to Arizona's public records law, in response to any work history requests, the City agrees that the City 10. No provision within this agreement shall be construed as an admission by the Parties of improper conduct, omissions or liability. 11. In the event of litigation arising out of an alleged breach of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs. This paragraph shall not apply to any claim challenging the validity of this Agreement under the ADEA. 12. This Agreement contains all the promises and understandings of the Parties. There are no other agreements or understandings, except as set forth herein. This Agreement may be amended only to the extent required to comply with law or by a written agreement of the Parties. 13. Notice of Time for Reflection and Waiver. Smith is advised to consult with an attorney before signing this Agreement. Smith agrees that he has carefully read and fully understands all of the provisions of this Agreement, and that he is voluntarily entering into this Agreement. 14. Smith agrees that, as part of this Agreement, he has been provided with consideration in addition to anything of value to which he is already entitled. Smith may revoke this Agreement within 7 days after he signs this Agreement. No Severance or payments will be disbursed until the 7-day revocation period has expired.

Roberteugenesmith@gmail.com

@@@@@@@@@@@@ The City Charterhttp://www.bisbeeaz.gov/DocumentCenter/View/2739/City-Charter-2014-Update?bidId= Section 3.09 deals with the Removal of City ManagerSection 3.09 (e) deals with Salary upon Removal The City Manager's contract https://www.bisbeeaz.gov/DocumentCenter/View/4034/Employment-Agreement-Robert-E-Smith-City-Manager-City-of-Bisbee-2#3 deals with compensation #9 CM deals with resignation XXXXXXXXXXXXXXXXXXXXXFMXXXXXXXXXXXXXXXXXXXXXX

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